A SME cartel can bring significant competitive advantages for small and medium-sized companies in order to be able to compete with large companies in an industry. This applies in particular to specialization cartels and rationalization cartels, which the GWB permits under certain conditions. Under the umbrella of a SME cartel, for example, price fixing and quota formation that are prohibited in themselves may be permitted. However, the antitrust authorities carefully check whether the requirements for a small and medium-sized business cartel are met. Above all, it should be noted that admissibility is limited to German antitrust law and its scope of application. According to the regulations of the European antitrust law this is not the case. For example, as soon as a cross-border specialization cartel is to be agreed and this affects interstate trade, the exception in Section 3 GWB no longer applies. The admissibility of a SME cartel must also be examined particularly carefully if a dominant company or a company with superior market power is involved. This problem arises particularly when a medium-sized company grows rapidly and becomes a dominant company. There would then be doubts about fair competition.
SME cartel – what requirements exist?
Agreements between competitors that aim to rationalize economic processes through inter-company cooperation do not fall under the antitrust ban under Section 1 GWB if this does not significantly impair competition on the market and the agreement serves to increase the competitiveness of small or medium-sized companies improve, Section 3 GWB. A medium-sized business cartel should not be confused with a delivery community. A supply group does not fall under the antitrust ban if a specific order cannot be fulfilled by a single company, such as large supply contracts or large tendering procedures.
First of all, all companies involved in the SME cartel must be small or medium-sized companies with a combined market share of less than 10-15 % in all service areas of the SME cartel. These service areas can include sales, purchasing, logistics, marketing and debt collection. The following requirements must also be met for a medium-sized business cartel:
- The object of the SME cartel must be the rationalization of economic processes through inter-company cooperation between the companies involved,
- The SME cartel does not significantly impair competition on the market,
- the agreement serves to improve the competitiveness of the small or medium-sized companies involved, and
- The geographical market in which the SME cartel operates is limited to the territory of Germany.
Whether the medium-sized business cartel is loose for a one-off project or long-term through a cooperation agreement or even through the establishment of a joint venture, such as a GmbH & Co. KG (read here regarding the limited partner's non-competition clause in the GmbH & Co. KG) is irrelevant for the admissibility under antitrust law under the GWB. All options are open to you. However, in the case of a longer-term focus, it must be regularly checked whether the requirements of the SME cartel are still met.
SME cartel – rationalization of economic processes
Rationalization of economic processes means improving the economic cost-benefit ratio for everyone involved in the SME cartel, precisely through their cooperation within the SME cartel. This rationalization is achieved when each small and medium-sized company involved improves the ratio of its operating expenses to its income. This can include cooperative measures in the areas of sales, debt collection, financing, administration, advertising, logistics or purchasing. What is crucial is that the respective economic cost-benefit ratio improves for all medium-sized companies involved. This must be proven separately for all companies. If such an improvement in the cost-benefit ratio is already denied for a company in the SME cartel, the SME cartel is not exempt from the cartel ban.
These rationalization effects and efficiency gains must also result from the agreements restricting competition, but must not be achieved solely through price agreements or quota regulations. The admissibility of these agreements must therefore be examined particularly carefully. What is required is proven causality between the improvement of the cost-benefit ratio for all companies involved and in the service areas taken over by the SME cartel, such as joint trading, debt collection, sales, scheduling or marketing.
The exemption of a medium-sized business cartel from the cartel ban also requires that competition is not significantly impaired. This can only result from an overall assessment of the effects of the SME cartel on the competitive conditions of the affected market. In particular, the market shares of the companies involved in the SME cartel, the extent to which competition is restricted by the agreements within the SME cartel and other existing collaborations in the same market must be taken into account. However, the decisive factor is always the joint market share in the respective service areas of the medium-sized business cartel, which may not exceed 10-15%. This is particularly true if price and quota agreements are to be made. The fact that these thresholds are not exceeded must be regularly checked and proven before the start of the SME cartel and also during its existence.
Ultimately, the SME cartel must increase the competitiveness of small and medium-sized companies, for example by expanding the range of services, reducing logistics costs or improving marketing. If the medium-sized companies involved cannot prove such an increase, there may be a restriction of competition that violates antitrust law and an impermissible cartel.
What is important to you now?
A SME cartel is an attractive form of cooperation between competitors, but is subject to strict conditions. It is necessary that the small and medium-sized business cartel individually and demonstrably improves the business cost-benefit ratio for all companies in all service areas that the small and medium-sized business cartel takes over for the participating companies. From a legal policy perspective, it is regrettable that there is no longer a “no objection certificate” from the Federal Cartel Office. The legal situation therefore requires companies to examine the admissibility of a small and medium-sized business cartel themselves and independently and to accept the risk of inadmissibility. If competition in other European member states is also affected, for example because the SME cartel operates in areas close to the border, European antitrust law applies, which does not exempt SME cartels. In such cases, the requirements are even higher; in particular, it must be proven that the end users benefit from the rationalization effects, i.e. through lower prices.